The Impact of the Proposed Listing of the Prairie Chicken as “Threatened” under the Endangered Species Act on Wind Energy and Oil & Gas Development

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Recently the United States Fish & Wildlife Service (“FWS”) issued a proposal to list the Lesser Prairie Chicken (“LPC”) as “threatened” under the Endangered Species Act (“ESA”). The listing of the LPC will have significant impacts on the current and future operations of the wind energy and oil & gas development industries.

Under the ESA, a species may be listed as either “endangered” or “threatened.” An “endangered” species is one that is in danger of extinction throughout all or a significant portion of its range. A “threatened” species is one that is likely to become endangered within the foreseeable future.

The ESA makes it unlawful for a person to “take” a listed species without a permit. By regulation, this definition has been expanded to include significant modification or degradation of habitat. For threatened species, Section 4(d) of the ESA gives FWS authority to issue a special rule that tailors the prohibition against “taking” to the conservation needs of the species. More often than not, 4(d) special rules involve addressing habitat preservation.

LPC habitat currently extends across five states, including Colorado, Oklahoma, New Mexico, Texas, and Kansas. FWS maintains that the major reason for listing the LPC is due to the “historical, ongoing and probable future impacts of cumulative habitat loss and fragmentation.” FWS points to the development of wind energy and oil and gas development as reasons for this habitat harm. Because the LPC avoids tall structures due to their frequent use as hunting structures by birds of prey, the construction of wind turbines, transmission towers and drilling rigs would lead to habitat fragmentation and potential violations of the ESA.

FWS indicates that a final determination on the listing of the LPC will be made by September 30, 2013. Energy development companies should consider taking steps now to minimize the impacts on their operations if the LPC is listed. A number of compliance tools and incentives are available that provide regulatory guarantees to those who voluntarily agree to protect habitat of species before they are listed under the ESA. One of these tools is the Candidate Conservation Agreement with Assurances (“CCAA”), whereby non-federal property owners agree to voluntarily provide habitat protection or enhancement measures on their land, thereby reducing the threat to the species. In return, property owners receive an Enhancement of Survival Permit that provides protections if the species is later listed. In addition, the CCAA provides assurances that if the species is later listed, participants will not be required to implement additional conservation measures.